James v The Queen
[2013] NSWCCA 272
•01 November 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: James v R [2013] NSWCCA 272 Hearing dates: 1 July 2013 Decision date: 01 November 2013 Before: Emmett JA, Fullerton J, Schmidt J Decision: The applicant is directed to notify the Registrar and the Crown no later than 15 November 2013 whether he proposes to adduce further evidence on re-sentencing.
Catchwords: CRIMINAL LAW - sentence appeal - 16 offences relating to the possession and transmission of child pornography - using a carriage service to cause offence - whether sentencing judge erred in assessing objective seriousness of offences - whether sentences are manifestly excessive Legislation Cited: Crimes Act 1900 (NSW)
Criminal Code 1995 (Cth)Category: Procedural and other rulings Parties: Paul Stephen James (Applicant)
The Crown (Respondent)Representation: Counsel:
A Miller (Applicant)
C O'Donnell (Crown)
Solicitors:
Hammond Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2010/154421 Decision under appeal
- Date of Decision:
- 2011-11-04 00:00:00
- Before:
- Cogswell DCJ
- File Number(s):
- 2010/154421
Judgment OF THE COURT
The applicant sought leave to appeal against sentences imposed in the District Court on 4 November 2011 after a jury convicted him of 16 offences under the Criminal Code Act 1995 (Cth) and the Crimes Act 1900 (NSW) relating to the possession and transmission of multiple images and multimedia files of child pornography or child abuse material. He was also convicted of an offence under the Criminal Code Act of using a carriage service to cause offence. He was convicted on a total of 17 counts.
In the hearing of the application the applicant relied on three grounds as follows.
(1) The sentencing judge erred in assessing the objective seriousness of counts 1 to 15 as being in the mid range of seriousness.
(2) The sentencing judge erred in assessing the objective seriousness of count 17 as being within the mid range of objective seriousness.
(3) The head sentences and non-parole periods were manifestly excessive.
In relation to ground 1, which rather subsumed the argument in relation to the others, the applicant submitted that, although the sentencing judge adopted the approach of imposing individual sentences for each of the 15 offences, he did so referable to the number of child pornography files transmitted, irrespective of whether they were images or multimedia files. It was submitted that the sentencing judge thereby failed to take into account a factor relevant to an assessment of objective seriousness of offences of the relevant kind.
It was accepted in argument that the evidence led on sentence, while in all other respects comprehensive, did not allow for any factual findings of that specific kind to be made, since the actual content of relevant files was not in evidence. The sentencing judge expressly observed that, while he had information about how many images were transmitted in respect to each offence, he did not have information about the range of categories over which those images were spread so far as each individual offence was concerned.
It is difficult to see how a finding of mid-range offending could be made without that evidence. However, it does not necessarily follow that the individual sentences are infected with error for that reason or that without that evidence a finding of low-range offending was mandated.
The Court has concluded that the graduated individual sentences imposed for the transmission offences, in the absence of any evidence as to the content of the files transmitted in each count, are suggestive of error. Thus, the individual sentences, or at least some of them, appear to be excessive. Because of the accumulation of one month over each of the transmission offences, an excessive sentence on one of the transmission counts might have had an effect on the total sentence imposed. A re-sentencing exercise may be warranted for that reason, the more so if the error infected all of the transmission counts.
It was agreed at the conclusion of argument that, were the Court to reach a concluded view that the sentences for the transmission offences were suggestive of error, the Court may not ultimately be called upon to re-sentence if, after further consideration of the available evidence, the applicant elected to lead no further evidence on re-sentence to establish error.
We have formed the view that the sentences for the transmission offences are indeed suggestive of error. Accordingly, the appropriate course would be for the applicant to be given the opportunity to decide whether to adduce further evidence on re-sentencing. If, however, no further evidence were to be adduced to demonstrate error, the application would be dismissed.
The applicant accordingly will be directed to notify the Registrar and the Crown no later than 15 November 2013 whether he proposes to adduce further evidence on re-sentencing. The application will then be listed for further directions on a date convenient to the parties. The parties may approach speak either the Registrar or the Associate to Fullerton J to fix a date for a further mention after 15 November 2013.
**********
Decision last updated: 11 November 2013
0
0
2